Li v 110 Formosa (NZ) Limited - [2019] NZHC 70

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001650

CIV-2016-404-001878 [2019] NZHC 70

BETWEEN
JUN LI

Applicant

AND

110 FORMOSA (NZ) LIMITED

First Respondent

AND

MENG WANG

Second Respondent

Continued overleaf

Hearing: 30 January 2019

Appearances:

D M Connor and D J D van Hout for Applicant (in 1650) D W Grove for First Respondent (in 1650)

A J B Holmes and L E Mannis for Second, Fourth and Fifth Respondents (in 1878)

Judgment:

5 February 2019

JUDGMENT OF VAN BOHEMEN J

(ON APPLICATIONS FOR STAY OF JUDGMENT AND DISCHARGE OF CAVEAT)

This judgment was delivered by me on 05 February 2019 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Carson Fox Bradley Ltd, Auckland (X Li) Foy & Halse, Auckland (G Halse)
Cook Morris Quinn, Auckland (D Morris) Robertson, Auckland (M Robertson)

LI v 110 FORMOSA (NZ) LIMITED [2019] NZHC 70 [5 February 2019]

AND
Continued from previous page

DINGZHI HUANG
Third Respondent [Discontinued]

GOLDEN BEACHLANDS HOLDINGS LIMITED
Fourth Respondent

JENNY AND EAMON HOLDINGS LIMITED
Fifth Respondent

LOO & KOO BARRISTERS, SOLICITORS, NOTARY PUBLIC

Sixth Respondent

Introduction

[1]On 30 January 2019, I heard applications from:

(a)the first respondent, 110 Formosa (NZ) Ltd, for orders to discharge the caveat registered by the applicant, Jun Li, against the title to the property comprising the Formosa Golf Course at Gulf Harbour (the Formosa property) following the judgment issued on 19 December 2018 by Fitzgerald J Li v 110 Formosa (NZ) Ltd in which the Judge held that Mr Li had no interest in the Formosa property;1

(b)Mr Li for a stay of the execution of Fitzgerald J’s judgment pending determination of the appeal Mr Li says he intends to file by 8 February 2019.

[2] Although Mr Li’s application to stay Fitzgerald J’s judgment was filed after and in response to 110 Formosa’s application to discharge Mr Li’s caveat, counsel agreed that the outcome of the application to lift the caveat was largely contingent on the outcome of the stay application. Accordingly, the submissions by Mr Connor for Mr Li and by Mr Grove for 110 Formosa addressed the applications together with a principal focus on the application for stay.

[3] Mr Li’s solicitors served the stay application on all parties. However, only the solicitors for Mr Li and 110 Formosa were notified there was to be a hearing of the applications on 30 January 2019. Counsel for the second, fourth and fifth respondents, Meng Wang, Golden Beachlands Holdings Ltd (GBHL) and Jenny Eamon Holdings Ltd (JEHL), were present but the sixth respondents were not represented. All counsel present agreed, however, that the hearing should proceed as scheduled.

[4] Mr Holmes for Mr Wang, GBHL and JEHL did not make submissions on the substance of the applications but said his clients supported the position advanced by 110 Formosa in opposing the stay and supporting the discharge of the caveat.

1 Li v 110 Formosa (NZ)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 70
Decision Date: 5 February 2019

CaseChat Overview and Summary

This case involved an application for a stay of the execution of a judgment and an application to discharge a caveat. The applicant, Jun Li, sought a stay of the execution of the judgment pending the determination of an appeal he intended to file against the judgment of Fitzgerald J. The first respondent, 110 Formosa (NZ) Ltd, applied for the discharge of the caveat registered by Jun Li against the Formosa Golf Course property. The court considered various factors in determining whether to grant the stay of execution, including whether the appeal would be rendered nugatory without a stay, the bona fides of the applicant, and the balance of convenience. The court found that the discharge of the caveat would not render the appeal nugatory, the bona fides of both parties were neutral, and the balance of convenience weighed against a stay of execution. The court also considered the apparent strength of the appeal, but found that it was unlikely that the appeal would succeed on its merits. Ultimately, the court dismissed the application for a stay of execution and granted the application to discharge the caveat. The court ordered that the orders made by Lang J on 26 July 2016 concerning the caveat registered against the Formosa Golf Course property be revoked, and that the caveat be discharged, with effect from 7 March 2019.

Orders